What You Need To Know After A Workplace Injury

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2 What You Need To Know After A Workplace Injury The Road To Results In Workers Compensation Milestones Wm. Breck Seiniger, Jr. Andrew Marsh 1 The Accident Medical Recovery Income Benefits Maximum Medical Improvement Permanent Impairment...8 ROADMAP...CENTERFOLD 6 Permanent Partial Disability Litigation or Settlement When to Retain an Attorney...16 About the Authors...19 Legend: Terms and Definitions...18 DISCLAIMER: This guidebook is intended to provide general information only. It is not intended to be a substitute for representation by a qualified attorney, nor does it constitute an offer of services, the giving of legal advice, or the formation of an attorney-client relationship. The Road to Results Series Developed by Andrew Marsh Copyright 2012 Seiniger Law Offices, P.A. (208)

3 2 Let s say you have been traveling down Life s Highway, working your job, minding your own business, and bringing home a paycheck. Suddenly there is a workplace accident, and you are injured. Almost immediately, your peaceful daily onthe- job routine has been replaced with a confusing babble of doctors, insurance adjusters, government regulations, and struggles to get even the most basic medical care. And worse, what about your paycheck? You have arrived in the strange world of Idaho Workers Compensation Law. It is time to ask for directions. Seiniger Law Offices has been representing injured workers for three decades, and we can help you steer through the wreckage. To navigate this harrowing highway of detours, slowdowns, treacherous curves, and potholes, you are going to need a RoadMap and that is what this guidebook is. We know what it takes to get results in workers compensation cases, and we know how to get you back on Life s? WELCOME CENTER Highway via our Road To Results. Questions or comments? Call attorneys Breck Seiniger or Andrew Marsh at (208) The Accident SURE AND CERTAIN RELIEF The stated purpose of the Idaho Workers Compensation Act (Idaho Code ACCIDENT et seq.) is to provide sure and certain relief following an accident or occupational disease. However, many injured workers (Claimants) experience just the opposite as they struggle to obtain needed medical care and benefits. RIGHT TO BENEFITS If you are injured in a work-related accident, your Employer or their workers compensation insurance company (Surety) has to pay for all medical treatment; income benefits during treatment (if you are unable to work); compensation for permanent physical impairment; and compensation for permanent disability that reduces your wage-earning capacity or access to the job market. Note: If you are diagnosed with a work-related occupational disease, most of the rights, benefits, obligations, and procedures listed in this guidebook will apply. YOUR DUTY TO REPORT AN ACCIDENT REPORT ACCIDENT TO EMPLOYER The first step on your Road to Results is to immediately report the accident, however minor, to your Employer. The law gives you sixty (60) days to make a First Report of Injury to your Employer. Of course, any delay in reporting the accident (or in seeking medical care) only serves to make it more difficult for you to prove both the accident and the resulting injury. 3

4 4 SEEK MEDICAL CARE Next, seek medical care promptly. Many injuries to areas such as the shoulder, knee, or back may not seem severe at first, and sometimes a worker is tempted to ignore it and tough it out. Better to discover right away that the injury is minor, H SEEK MEDICAL CARE than to skip the doctor and find out later that the delay has worsened the original injury. You have a right to medical care at your Employer s expense. Once you have reported your claim, you may choose your own doctor if the Employer has not already referred you to one. WHAT CONSTITUTES A COMPENSABLE INJURY? In order to be compensable, a workers compensation injury must be a personal injury caused by an accident at work. In Idaho, an accident is defined as an unexpected mishap which can be identified as occurring at a reasonably specific time and place. It must arise out of the employment, and occur during the course of the employment. (There are exceptions, so you may wish to ask an attorney about your specific circumstances.) CAUSATION RULES OF THE ROAD Always see a doctor right away, even if you are not sure how severe your injury is. If in doubt, find it out. There must be a cause-and-effect relationship between the accident and the injury, in order for the Surety to be obligated to pay for medical care. The burden of proof is on you, the Claimant, to prove that the industrial accident caused your need for care. 2 Medical Recovery TREATMENT Unless you require hospitalization, your Employer may send you to an occupational medicine facility, or you may MEDICAL choose your own physician. This begins your RECOVERY BEGINS period of Medical Recovery. Your Primary Treating Physician (PTP) may order imaging studies (x-rays or MRIs), lab work, or other diagnostics. He may also refer you to a specialist, such as a surgeon. Note that the Surety is not liable for any treatment you seek outside this chain of referral. However, the Idaho Workers Compensation Act does provide a procedure for you to request a change of physician, although the Surety is not required to grant it. You have a responsibility to cooperate with your medical providers, keep your appointments, and avoid any activities that might hinder your recovery. MEDICAL BENEFITS During your Medical Recovery period, the Surety must pay for any and all treatment, medical or surgical, 15 that is reasonably required by your physician S and related to your workplace injury. This includes prescriptions, crutches, appliances, and diagnostic tests. There is no co-pay. You may be reimbursed for travel expenses incurred in receiving medical care, and for mileage that exceeds fifteen (15) miles round-trip. INSURANCE COMPANY DOCTORS (IME) The Surety has the right to send you to an Independent Medical Examiner (IME) for the purpose of obtaining an opinion about your condition separate from that of your Primary Treating Physician. You may 5

5 6 wish to seek legal advice before this appointment, because the independent physician is being paid by the Surety, and has no duty of loyalty to you. PRE-EXISTING CONDITIONS It is not unusual for a Claimant to have had a previous injury to the body part that has now been injured in a workplace accident. For example, perhaps ten years before a workplace injury to your lower back, you were involved in an auto accident that also injured your back. This is called a Pre-existing Condition. Sometimes a Surety will cite a Pre-existing Condition as a reason to deny medical care or other benefits. However, the law says that you are entitled to any medical treatment that is necessitated as a result of the aggravation or acceleration of the Pre-existing Condition. In other words, even if you aggravate an old injury, the Surety still must pay to treat the aggravation. 3 Income Benefits TIME OFF WORK During the period of your Medical Recovery, your physician will determine whether your medical condition prevents you from working. If so, you are entitled DETOUR to time-loss income benefits, known as Temporary Total Disability (TTD) benefits (assuming your OFF WORK Employer discontinued your wages, which is usually the case). Your eligibility for TTDs does not begin until after you have missed five days of work, unless you were hospitalized or miss more than two weeks running from the date of injury. TEMPORARY DISABILITY BENEFITS In essence, TTD benefits are paid at the rate of Sixty-Seven Percent (67%) of your Average Weekly Wage (AWW), subject to maximum and minimum amounts and with some exceptions. The formula can be complicated. An attorney can help ensure that you are not being underpaid. LIGHT DUTY WORK As your Medical Recovery progresses, your physician may determine that you may return to work, subject to medically-imposed limitations. This is known as Light-Duty Work or Modified SLOW Duty. Your physician s Temporary Work LIGHT DUTY WORK Restrictions (TWR) usually limit certain physical activities such as lifting, carrying, torquing, reaching, or climbing, and may also limit the number of days or hours you may work. Often your Employer is able to provide Light-Duty Work that complies with your physician s restrictions. If so, you may be eligible for Temporary Partial Disability (TPD) benefits, which is calculated as 67% of the difference between your preinjury wages and wages actually paid to you while on Light Duty (not to exceed the maximum payable TTDs). RULES OF THE ROAD Always ask your doctor for a Return to Work form that lists your restrictions, and provide a copy to your Employer. If there is no Light-Duty Work available to you by your Employer or otherwise in your geographical area, you may be eligible for full TTDs. If you have to miss work to attend a medical appointment, TPD benefits may also be paid for the time lost. 7

6 8 4 Maximum Medical Improvement MEDICAL STABILITY END MEDICAL RECOVERY Eventually, your physician will conclude that your recovery is complete and you have reached a point of medical stability, known as Maximum Medical Improvement (MMI). You will be released from medical care at that point. NO DUTY TO EMPLOY Once you have been found to be at MMI, workers compensation laws do not require your Employer to continue employing you (although other laws may apply, such as the federal Family Medical Leave Act, 29 U.S.C ) The Idaho Industrial Commission Rehabilitation Division (ICRD) provides free counseling to help you seek new employment. You may consult the ICRD for employment advice at any time after your accident. 5 Permanent Impairment PPI RATING DETERMINED BY PHYSICIANS IMPAIRMENT RATING % After you are at MMI, your treating physician should determine if you have any Permanent Partial Impairment (PPI), defined as an anatomic or functional abnormality or loss. The PPI rating is given as a percentage of the Whole Man, where a rating of 100% would essentially mean total impairment. For example, a workplace injury resulting in the loss of one eye equates to a 35% PPI rating. Physicians use the American Medical Association s Guides to the Evaluation of Permanent Impairment to determine PPI ratings. Not all treating physicians are trained to use the AMA Guides to award impairment ratings. Sureties often obtain PPI ratings from their own Independent Medical Examiners. However, a Claimant has the right (at his own expense) to obtain a PPI rating from any doctor of his own choosing who is not a treating physician. PERMANENT PARTIAL IMPAIRMENT BENEFITS Your PPI benefit is a one-time compensation (as opposed to an ongoing income benefit), and is paid out in monthly installments until paid in full. It is a function of your PPI rating and 55% of the Average State Wage (ASW) for the year of injury. As a quick reference, for an injury in 2012, each percentage point of PPI equates to $1, in benefits. HOW TO CALCULATE YOUR PPI BENEFIT Average State Wage (ASW) (weekly) $ % of Average State Wage (weekly) $ Whole Man (maximum benefit in weeks) 500 Your Permanent Partial Impairment rating (PPI) 15% Your number of Benefit Weeks (Whole Man x PPI) 75 Your Total PPI Benefit (55% ASW x Benefit Weeks) $27, (Example assumes an injury date in 2012 and a PPI rating of 15%) PERMANENT WORK RESTRICTIONS If your physician finds that you have Permanent Partial Impairment, then he should also provide you with Permanent Work Restrictions (PWR). If you suffered a knee injury, for example, he might limit you to no repetitive climbing, and occasional squatting only. The Restrictions are designed to protect you from aggravation or re-injury of the body part, and to ensure that you do not attempt to perform any activities that might be beyond your safe physical capability. 9

7 Roadmap THE ROAD TO RESULTS IN WORKERS COMPENSATION This is you, traveling down Life s Highway and working at your job like any other normal day. Accidents happen! When you are injured at work, Idaho s workers compensation law applies. Follow this RoadMap to find out what to do. First, report it to your Employer, and then see a doctor right away. Ch. 1 Once you see a doctor, your Medical Recovery Period begins. (It ends when your doctor declares you MMI.) Ch. 2 During treatment, your doctor may take you off work; allow you to work Light Duty with temporary restrictions; or allow you to work unrestricted. Ch. 3 Maximum Medical Improvement (MMI) is the point where your doctor finds you medically stable, and curative treatment ends. Ch. 4 After MMI, your doctor determines if you have any anatomic or functional loss, and rates you for Permanent Partial Impairment (PPI). Ch. 5 If your doctor gives you a PPI rating and Permanent Work Restrictions, then a vocational expert can determine if you have any loss of wage earning capacity, called Permanent Partial Disability (PPD). Ch. 6 If you and the Surety cannot reach agreement on what benefits they owe you, the IIC can hold a Hearing to decide. Ch. 7 HEARING Idaho Industrial Commission (IIC) IDAHO ACCIDENT REPORT ACCIDENT TO EMPLOYER H SEEK MEDICAL CARE MEDICAL RECOVERY BEGINS RETURN TO WORK SLOW LIGHT DUTY WORK DETOUR END MEDICAL RECOVERY MMI IMPAIRMENT RATING % DISABILITY RATING % RESOLVE CASE LAKE LITIGATION CASE REMAINS NOT CLOSED OPEN OFF WORK LUMP SUM SETTLEMENT S.O.L. AHEAD YOUR WORK COMP CLAIM A workplace accident starts the claim process. Your Employer must notify their work comp insurance company (Surety), who is responsible for paying your benefits. Ch. 1 MEDICAL BENEFITS The Surety must pay for all medical treatment ordered by your doctor, including diagnostics, labs, prescriptions, referral to specialists, and medical travel that exceeds 15 miles round-trip. Ch. 2 RETAIN COUNSEL At any point along the road, you may hire an attorney to advocate for you, help with legal complexities, and advise you of important deadlines. Ch. 8 INCOME BENEFITS If your doctor takes you off work, or limits you to Light Duty, you are entitled to time-loss benefits known as Temporary Total (or Partial) Disability (TTDs or TPDs). Essentially, TTDs are paid as 67% of your Average Weekly Wage. Ch. 3 EMPLOYMENT AFTER MMI The law does not require your Employer to rehire you after your doctor releases you from medical care. The Industrial Commission Rehab Division (ICRD) provides counselors who can help with your job search, if necessary. Ch. 4 PPI BENEFITS The Permanent Partial Impairment rating is given as a percentage, where 100% would essentially mean total impairment. The Surety must pay your PPI benefits, which are a one-time compensation for your anatomic or functional loss resulting from your injury. Ch. 5 PPD BENEFITS The Permanent Partial Disability rating, also known as Disability Beyond Impairment, is expressed as a percent, and is paid by the Surety as a one-time compensation. Your PPD may be determined by a vocational expert, whose fee is paid by you, the Claimant. Ch. 6 SETTLEMENT The IIC can provide a mediator to help you resolve any disputes with the Surety over what benefits are due or what medical treatment is necessary. A negotiated Lump Sum Settlement typically resolves these issues and closes out your rights to any future benefits, including medical treatments. Ch. 7 STATUTE OF LIMITATIONS You are not required to settle your case or take it to hearing. However, the Statute of Limitations (SOL) essentially requires you to file your Complaint with the IIC within one year of injury (5 years if any statutory benefits have been paid). Ch. 7 (208) The complete ROAD TO RESULTS guidebook, What You Need to Know After a Workplace Injury, is available at Chapter references above are to the guidebook. This guide is intended to provide general information only. It is not intended to be a substitute for representation by a qualified attorney, nor does it constitute an offer of services, the giving of legal advice, or the formation of an attorney-client relationship Seiniger Law Offices, P.A.

8 12 6 Permanent Partial Disability ECONOMIC FACTORS Whereas an impairment rating is a medical measure of loss of functionality, the concept of permanent disability relates to whether you have suffered any loss to your wage-earning capacity. The question is whether, as a result of your Permanent Partial Impairment and Permanent Work Restrictions, your wage-earning capacity or your access to the job market (jobs available to you) have been reduced. If so, you may have Disability Beyond Impairment, and be entitled to a benefit for Permanent Partial Disability (PPD). DISABILITY RATING % Frequently, the Claimant s attorney will recommend that a vocational evaluation expert be retained to determine the extent of Disability Beyond Impairment. The expert s report is invaluable in negotiating a settlement, and usually the expert s testimony is necessary if the case goes to trial. The cost of a vocational expert is borne by the Claimant. PPD BENEFIT As with the PPI benefit, the PPD benefit is expressed as a percentage, calculated with reference to 55% of the Average State Wage, and paid out in installments. The PPI rating and Disability Beyond Impairment rating are often added together and labeled Permanent Partial Disability, inclusive of impairment. When receiving a PPD benefit, you will want to confirm that the amount being paid is correct. CAUTION TOTAL DISABILITY AND ODD-LOT DOCTRINE The benefit rules become even more complicated for an occupational disease; death resulting from an industrial accident; or permanent total disability. For example, to be declared totally disabled, a worker need not be entirely unable to earn, but only be unable to perform services other than those which are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist. Moreover, workers whose injuries result in their being unable to find work regularly available within their geographical area can be declared totally disabled ( Odd Lot ), either because of their industrial accident or disease, or because of that accident or disease in combination with a pre-existing condition that previously interfered with their ability to work. These are complicated concepts that usually require the assistance of an attorney. OTHER DISABILITY TYPES DISTINGUISHED Your eligibility for workers compensation benefits is unrelated to other types of disability benefits for which you might also be eligible, such as federal Social Security disability or veteran s disability. In addition, some workers are covered under private insurance policies for short-term or long-term disability, often through their employment. Check with the appropriate agency and your private disability insurer to see if you are eligible for their benefits. RETRAINING Once you have completed your Medical Recovery, you may be medically unable to return to your original line of work, and you may need Retraining in a different field in order to be employable. You and the Surety may voluntarily enter a retraining agreement, or the Industrial Commission may order retraining benefits after a Hearing. Either way, the Surety must pay for the cost of retraining, as well as reasonable travel to and from the retraining 13

9 14 facility. The Surety must also pay TTD benefits during the retraining period. Payment on any benefits for Disability Beyond Impairment is delayed pending a final evaluation of employability after retraining is complete. 7 Litigation or Settlement HEARING ON THE CLAIM Once you are found to be at MMI, you are at a junction in the road, and you have a decision to make: can you resolve any disputed benefit issues through negotiated settlement, or do you want to take the Surety to a Hearing? Often, the Claimant and Surety cannot reach agreement on what medical treatment is reasonably necessary; your eligibility for TTD benefits; the correct PPI rating; or even whether a compensable accident occurred. The Idaho Workers Compensation Act provides for any such disputes to be resolved by the Idaho Industrial Commission (IIC). First, the Claimant goes to the IIC and files a Complaint against the Employer and its Surety. The Complaint must be filed within one year of the accident (unless the Surety has already paid at least some statutory benefits, in which case the Statute of Limitations is extended to five years). Following discovery, a Referee holds a Hearing (trial), and takes the testimony of HEARING the Claimant; witnesses to the accident; medical experts from both sides; and vocational experts. After receiving written briefings from the attorneys, the Referee makes a decision. The burden of proof is on you to establish your right to the benefits claimed. MEDIATION Because it can take months for a Hearing to be scheduled, and more time thereafter to receive the Referee s ruling, the parties often attempt to negotiate a resolution of their disputed matters. The Industrial Commission will provide a professionally-trained mediator, at no cost, to assist the parties in finding common ground. This non-binding procedure is called Mediation. LUMP SUM AGREEMENT LUMP SUM SETTLEMENT If the parties reach agreement after negotiations, either with the assistance of a Mediator or on their own, their attorneys draft a Lump Sum Settlement Agreement (LSSA). The LSSA typically resolves issues such as PPI and PPD benefits, and provides for the agreed-upon benefits to be paid in a lump sum, instead of in monthly installments. The Agreement usually provides that the Claimant is accepting the lump-sum consideration in lieu of his rights to benefits in the future stemming from that particular workplace accident. However, you are not obligated to settle your case or take it to Hearing. In the absence of an LSSA that closes out the Claimant s rights, the Surety remains potentially liable in the event that you should need medical treatment in the future for your injuries. If you are a Medicare recipient, your settlement may be affected by federal Medicare Set-Aside laws. You should consult an attorney early on in the workers compensation process. 15

10 16 8 When to Retain an Attorney ROUGH ROAD && && && && WARNING SIGNS It can be rough for a Claimant to travel the workers compensation highway alone. Here are some signs that it may be time to seek legal advice: Denied Claim: The Surety has denied your claim entirely. Refusal to Accept Referrals: The Surety refuses to authorize you to see a medical expert recommended by your doctor, or refuses responsibility for some treatment or prescription costs. Under-Treatment: The doctor chosen by your Employer or Surety is hesitant to fully treat your injuries, or to refer you for advanced diagnostics or surgical evaluation. Unpaid Time-Loss Benefits: Your doctor has ordered you to be off work, partially or completely, but the Surety is not paying your TTD benefits timely or in full. && Independent Medical Examination: The Surety has chosen its own doctor to evaluate you, which sometimes results in minimizing your PPI rating or terminating your right to ongoing medical treatment and the accompanying TTD benefits. && RULES OF THE ROAD Although an attorney is not required, the complexity of the law can make it difficult for you to negotiate a fair settlement or prevail at Hearing. Unresolved Issues after MMI: Your doctor has found you to be at Maximum Medical Improvement, and: No impairment rating or permanent work restrictions have been issued; Your injuries prevent you from returning to the type of work you were doing; Your PPI benefits have not been paid; or The Surety asks you to sign a settlement agreement. When any of the above warning signs appear, you should consider obtaining an attorney s opinion regarding your rights. You may also want to seek counsel if your case is in litigation or a Hearing is scheduled. The Idaho Industrial Commission says that due to the complexity of the judicial process, it is recommended that you contact an attorney (www.iic.idaho.gov). If the attorney is willing and able to take your case, you may find that it is a tremendous relief to have qualified counsel representing you. Most attorneys who take workers compensation cases do so on a contingency fee basis ( no-recovery, nofee ). The Idaho State Bar Association offers a Lawyer Referral Service (www.isb.idaho.gov). Often, legal representation is the best path to finding success on your Road To Results In Workers Compensation. We encourage you to share this guidebook with others who might need help or who have questions about workers compensation law and procedure. The authors website contains links to many other sites with useful information, as well as an online version of this guidebook, all at no charge. Visit us at You may also reach our website by scanning this Quick Response Code with your smartphone. Most smartphones allow you to download free bar-code scanning apps. 17

11 18 Legend TERMS AND DEFINITIONS Average State Wage Used for calculating PPI ASW and PPD benefits AWW Average Weekly Wage Your average weekly wage CLAIMANT You, the injured worker DOI Date of Injury Date of your accident EMPLOYER Your employer ICRD IIC IME LSSA MMI PPD PPI PTP PWR SOL SURETY TPD TTD TWR Industrial Commission Rehabilitation Division Idaho Industrial Commission Independent Medical Examiner Lump Sum Settlement Agreement Maximum Medical Improvement Permanent Partial Disability Permanent Partial Impairment Primary Treating Physician Permanent Work Restrictions Statute of Limitations Employer s work comp insurance company Temporary Partial Disability Temporary Total Disability Temporary Work Restrictions Agency providing return-toworkforce counseling Government agency overseeing work comp Outside expert who provides a medical opinion Contract between Claimant and Surety resolving the case Point of medical stability (treatment ends) Reduced wage-earning capacity resulting from your injuries Anatomic, or functional loss resulting from your injuries Claimant s main physician After MMI, permanent limit on your physical activities Deadline for filing a complaint, 1 year (5 years if any benefits have already been paid) Responsible for paying work comp benefits Benefits due if Light Duty wages are below statutory requirement Benefits due for wage loss if unable to work during medical recovery Limit on your physical activities during medical recovery About the Authors Attorneys Wm. Breck Seiniger, Jr. and Andrew Marsh have appreciated the opportunity to be able to help those in need. Over the last thirty years, Seiniger Law Offices has represented thousands of injured workers, building a track record of success, in the courtroom and out. We are proud of our reputation and what our name means to our clients, our fellow lawyers, and our opponents. Breck has been recognized by his peers for some of the most prestigious honors in the legal field, including selection for The Best Lawyers in America and Mountain States SuperLawyers, as well as the highest possible rating ( AV ) for legal skill and integrity from Martindale.com. Andrew, a graduate of Duke Law School, is marking over 25 years as an attorney, and has practiced with Breck for more than a decade. Seiniger Law Offices has also been named to the prestigious list of Best Law Firms in the national rankings from U.S. News & World Report. We are pleased to be able to provide this guidebook at no charge so that Idaho s workers will have access to a concise, easyto-read guide to workers compensation law. We welcome your questions or feedback. You may reach Breck Seiniger or Andrew Marsh at (208) , or through our website, 19

12 IDAHO DESTINATION REACHED RESULTS SUCCESSFUL 942 W. MYRTLE ST. BOISE, IDAHO (208) DISCLAIMER: This guidebook is intended to provide general information only. It is not intended to be a substitute for representation by a qualified attorney, nor does it constitute an offer of services, the giving of legal advice, or the formation of an attorney-client relationship. Graphic Design provided by Nick Shultz Copyright 2012 Seiniger Law Offices, P.A. Rev

13 If you got injured at work... Would you know what to do? Where to go? How to get results? If not, then you need a roadmap. Here is the information you need to put you on the Road To Results in your Idaho workers compensation case. In the concise, handy guide, we cover everything from warning signs in dealing with opposing parties to rules of the road for obtaining your benefits. Inside is a RoadMap that will show you the lay of the land and steer you in the right direction. Don t let your lack of information take you down the off-ramp to legal oblivion. Let Seiniger Law Offices give you the information you need, based on over thirty years of successfully helping injured workers. THE ROAD TO RESULTS in Workers Compensation

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